Copyright Directive text finalised

The full text of the agreed Digital Copyright Directive has been published. It now needs to be formally confirmed. Article 13 imposes obligations on internet service providers to obtain licences from rightholders to publish content.

What's the issue?

Reforming rules on copyright was one of the main aims of the EC's Digital Single Market project, however, it has also been one of its most difficult tasks with controversy focused in particular on the new press publication right and the obligation on internet service providers to obtain licences from rights holders to publish content including content uploaded by users.

What's the development?

Political agreement has been reached on the text of the draft Directive which has been published in full and now needs to be formally adopted.

What does this mean for you?

The two most controversial components of the Directive are:

• The press publication right which requires publishers of press publications (news aggregators and media monitoring services) to obtain licences from rightholders (subject to certain qualifications).
• The requirement on online content sharing service provider platforms (like YouTube) to get a licence or permission from the rightholders for content they are hosting (again subject to qualifications).

Following extensive lobbying, both these Articles have changed significantly since the Directive was first published.

Article 11 – Press publication right

Member States are required to provide publishers of press publications with exclusive rights to reproduce and make available their works with respect to their online publication by information society service providers.

This does not apply to private or non-commercial use carried out by individuals, nor to hyperlinking or the use of individual words or very short extracts. The right lasts for two years (down from an original 20) from the first day of January of the year following the date of publication.

Member States must provide that the authors of the works incorporated in a press publication "receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers".

Information society services are defined in Directive 2015/1535 as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. A service is provided for remuneration if recipients pay for it or if it is funded by advertising.

While what constitutes fair remuneration is undefined, the wording does suggest that it involves financial payment and that those who share and copy content from press publications will have to obtain licences to do so.

Article 13 – Use of protected content by online content sharing service providers

Article 13 requires that Member States provide for content sharing service providers to be responsible for communicating content to the public. They will be required to get a licence or other authorisation from rightholders and they will not be protected under the hosting exemption but will be liable for any copyright infringement unless they can demonstrate that they:

• Made best efforts to obtain an authorisation.
• Made best efforts in accordance with industry standards to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information.
• And in any event, have acted expeditiously in response to any take down notice and made best efforts to prevent future uploads.

These factors are all to be assessed in light of the principle of proportionality, taking into account the type, audience and the size of services and the type of works or other subject matter, as well as the availability of suitable and effective means and the costs involved.

Content sharing services which have been available in the EU for less than three years and with an annual turnover of less than EUR10m face a lesser burden and need to demonstrate that they used best efforts to obtain authorisation.

If they have an average number of more than 5m unique visitors per month, they also need to demonstrate they have used best efforts to prevent further uploads of notified works and other subject matter in relation to which the rightholders have provided information.

The provisions in Article 13 do not prevent the use of online content for quotation, criticism and review, caricature, parody or pastiche, and do not amount to a general monitoring obligation.

There are also requirements around dispute resolution, and online content sharing service providers need to inform users in their terms and conditions about the possibility for them to use works and other subject matter under exceptions or limitations to copyright.

Provision is made for dialogue between stakeholders to establish best practices with a view to publishing guidance which will hopefully fill in some of the gaps in the legislation.